CAVC–BOWEN v. SHINSEKI–SEMPER FI, DUDE

Posted on July 12, 2012 by asknod

Every once in a while I see a good decision but often all I see in panel opinions is negligent lawyering . Call it Driving (claim) under the Influence (of Lawyer). What else can you take away from this? I have been known to be in error more than once. The Keith Roberts imbroglio comes to mind foremost. Nevertheless, always one to read between the lines, I dug into this one. The players:

JERROLD C. BOWEN, APPELLANT,

Daniel J. Neilsen, of Seattle, Washington, for the appellant

ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Nisha
C. Wagle, Deputy Assistant General Counsel; and Jesse B. Greenstein, all of Washington, D.C.,for the appellee

The place: 625 Indiana Ave. NW, Suite 900,  Washington DC 20004-2950

The time: Now. June twenty ninth, 2012

Okay. Mr. Bowen has chosen to appeal a CUE claim from the RO directly to the Court. Lawyering 101 is know your jurisdictional limits.  Examining the legalzoom.com credentials of Mr. Neilson, I see nowhere that he is admitted to the CAVC bar. He may serve as legal counsel for Mr. Jerrold C. Bowen , however, by virtue of his loyal service to our country in time of war from 1991-1995 honorably in the USMC. The law permits that. The same United States Code says you have the right to remain stupid too.

With that said, absent any legal training in the Lion’s den of the CAVC arena, he is an unfortunate novitiate and in way over his head. I admire him. He is quintessential Marine. “That’s why they sent me instead of the Army”-type of Marine. Gitterdone Marine. If anyone were versed in this art and also happened to be a Veteran of the Marine Corps, I would seek him out among all others to defend me.  He’s not and Bowen shouldn’t have. But then, Bowen bears the brunt of the error too because this is his friend or acquaintance. Face it. They probably didn’t meet at the bar.

The second bone of contention is that there is a matter of the misaddressed letter that went awry. The Presumption of Regularity Rule was violated but the Court let the vA off on this technicality because he was offered one by the Board which would have  remedied this glaring error. I wouldn’t have. There were two opportunities to have a hearing. Either one could have been the deciding one that granted his claim. Right? Well, not exactly.  But let’s dig deeper.

Mr. Bowen had a VSO. Ruh-oh Rorge! Rorge denied!

Mr. Bowen’s rep. scheduled the hearing. Jerrold never attended because the hearing notice was mailed to the wrong address. Guess who? But here’s where the story runs up on the rocks. His representative never followed up and found out why. Nobody ever hollered  “Excuuuuuse me! Nothing but silence. In fact, they went on up to the Board and skipped the opportunity to do it in front of the VLJ when presented with the chance. Now, on appeal at the Court, Mr. Neilson tries to pull the due process rabbit out of the hat for the very first time.

Let’s pile blame up and measure it. Mr. Bowen’s claim went south when his highly trained legal counsel (VSO) stepped into the picture. Jerrold presented the claim as a new one to Mr. Rep.. But Mr. Bowen filed in 1994 for exactly the same thing. This was all in the 1994 claim to begin with so the 2007 filing was really a reopening of the old claim. When you reopen, you have to bring a new batch of evidence to the table that nobody has seen before and it has to bear on the subject you’re filing for. Thus your Disco Degenerative Disease  records are not material to a bent brain claim. You also have to fulfill a “new” as in “never before seen” requirement. Mr. Bowen just brought in all the old stuff and said “Here. I want to file for Walrus Gumboot and Ono Sideboard. Hold me in your armchair and you can feel my disease. Here’s my MEB. Push print.” The rep. on the other hand, was not keeping track of what was going on either or he could have averted this. Or…? Maybe he was differently-abled and just overlooked this discrepancy when he was perusing the C-file. That’s his job. They actually paid him to do this for to Mr. Bowen. Baaaaad VSO.

This same error code went up to the BVA with no embellishments and they confirmed what was undoubtedly a carbon copy of what the RO deep sixed. Okay. I give up. Why appeal with exactly the same stuff you just lost with? Ever hear of buddy statements? Nexus letters? Similar medical theories from Internet articles? Perhaps a hearing to explain your side of the coin? N&M evidence to rebut with?  Naw.

So, in sum Mr Neilson was handed an impossible claim riddled with defects. If you agree to do this, you have to have a plan. You have to have some impressive, convincing evidence to prove CUE. They’re getting deaf on that whole due process argument up there these days. It’s becoming the catch-all clause when all else fails. So that in itself was a non-starter. The fact that it had not been presented until arrival at the Court shows the last-ditch defense posture of  Messieurs Bowen and Neilsen. Obviously this was cooked up after viewing a lot of chicken entrails, tea leaves and adducing da bones, mon.

I don’t mean to be cruel here but ladies and gentlemen Vets- if you screwed up this bad- you need to go home and start a new line of defense buttressed by some serious medical evidence from your guys, not a medical opinion from theirs. In order to win, you have to have a strategy. A fallback position with more ammo cached is advisable for an appeal. The CAVC is the last-ditch, stand and deliver. Your whole defense has to arrive here coherent and in one piece from the get go. All the evidence has been looked at. Everything in the oven is done. What your bring here is the judicial mistake-not the “They promised me a rose garden!”

Mr. Bowen was barking up the wrong tree and will go back to the RO with his CUE claim. There he will argue the Due Process faery tale again and burn more useless candles at the altar of futility. The smartest thing Daniel could do for Jerrold at this point would be to counsel him to begin anew from the ground up and buy a really good book on Veterans Administration claims with a tell-all on how to win them. That’s what friends do for friends. They don’t waste their friend’s and their time on futile defenses. They go on the offensive and get a good nexus (or nexi in this case). That’s just what I would do if I was similarly situated. J1VO. My apologies if I have stepped on anyones’ ego or professional standings in the judicial community hereabouts.  I merely describe what I see. I didn’t write this book. The VSO, Jerrold and Daniel did.

Posted in CAVC/COVA Decision, Veterans Law | Tagged , , , , , , | 3 Comments

ANOTHER HICKEYGRAM

Posted on July 12, 2012 by asknod

In what is perhaps a redux of the famous Z-grams which Rear Admiral Elmo Zumwalt used to issue in the 70s on operational procedures in the Navy, so too is Undersecretary of the VA for Benefits Allison  A. Hickey similarly engaged. Her “H-bombs” are going off all over the place at 810 Vermont Ave. NW in DC and a few even land up in Congress.

Unlike Elmo’s legendary missives which were designed to improve Naval operations, Hickey’s appear to be panaceas to all those nasty problems we’ve been suffering with in silence for decades.  The latest appears to be a retread of the famous triage system instituted in the eighties to focus on needy Vets with problems that required immediate attention. That system was relegated to the mailroom where astute vA employees were assigned to open all the incoming mail. Its purpose was two fold and weeded out all the letters with anthrax and ricin. The important thing was that a Veteran could invoke the holy words Rule 900, and with supporting evidence, get his claim adjudicated before he didn’t have use for the money in the afterlife. This worked admirably until the claims picture changed with increased wars and their attendant fallout (injured Vets). We were instructed to call this “collateral damage” in the 70s when nape went further than we intended.

Member Squidly Didly sends us this latest masterpiece from the desk of none other than her royal highness of benefits. Its another H-bomb that simply restates the triage program and makes it sound like a brand new invention. I certainly don’t mean to sully Ms. Hickey’s reputation for innovation but if this is the best she and her henchman can come up with as a rejoinder to Rep. Filner’s tirade on inefficiency last month, we as Vets are in for a long winter of discontent. Sixteen ROs? Gee, what about the other 40, Master? In good time. Padewans. All in good time.

Veterans deserve better than for our Protector to simply repackage old programs and present them as new, cutting edge technology in the war on the claims backlog. The majority of us do not drive turnip wagons for a living and have a modicum of intelligence. Most of us can see the ham-handed tactics they are employing in a desperate attempt to hold on to their authority. The worst case scenario is beginning to rear its ugly head. What if outside agencies could be employed (read subcontracted) to successfully diminish the backlog and increase accuracy? Perish the thought. Why, that might mean they would lose their supremacy over all things Veteran. Is that such a bad thing?

Hickey is herself a Veteran. Although she flew a desk for a living in that former life, she should still empathize with Vets. The same applies to Uncle Eric. This shouldn’t be an adversarial relationship with us on the losing end. There is simply no parallel in American history for the shoddy treatment we have been getting since before the Bonus Army was decimated in DC back in 1932.

Always remember ladies and gentlemen-promises were made and gifts were exchanged when you signed up. This has been the case for two centuries since the War of Northern Aggression. You kept your promise and held up your end of the bargain. Unfortunately the government, like an ADD child, seems to forget its end of the agreement or worse-it constantly seeks to renegotiate the contract after signing to provoke a different outcome. That outcome seems to always leave us with less and less every time they renegotiate the compact. I now understand how the Oglalla Sioux felt after their last do-over with DC.

As Squid pointed out, all these purported “cures” simply are instituted at the RO level with no mention of the downstream issue of the logjam at the BVA rapidly developing. Hell, let’s revisit that and call it what it is-a clusterf**k of jurisprudence. I’m not one for expletives but we have used up all the polite adjectives over the years to describe what is going on. What Ms. Hickey and company don’t seem to absorb is that this has gone beyond the pale where simple H-bombs and press releases detailing what is in store for us don’t cut it. If they resolve the problem at the RO without addressing the next backlog phase, all we’ve fought for is a new stumbling block with a different name. Until we resolve the next most basic issue after timeliness (which is accuracy), all the speedupmyclaim.com crap is so much window dressing.

The only thing missing here is a catchy acronym like the “BOZO plan” for this new initiative. Brilliant OrganiZational Obfuscation Plan indeed. Its okay with me if you want to use that one. Somehow, it seems appropriately named under the circumstances.

Posted in Complaints Department, VA BACKLOG, vA news | Tagged , , , , , | 5 Comments

DIAL A PRAYER(827-1000)

Posted on July 11, 2012 by asknod

Do you get this feeling every time you call vA?

Posted in Humor | Tagged , , , , , | 1 Comment

HAL 9000 SERIES–THE M-21 1MR

Posted on July 11, 2012 by asknod

Meet the new, improved M21-1MR WARMS Computer. I bet that all this time you thought  there were little munchkins running to and fro down at the RO with C-files balanced on their heads. Busy, busy, busy. Or not. What is the M-21 1MR? It is merely the operating manual for 38 CFR. 38 CFR, in turn, is the VASEC’s interpretation, on any given day, of what it was that Congress was trying to ensure we received via 38 USCS. The M-21 is not law; it has no force of law. It merely tells raters what to do if A=B and B=C. Since the M 21 always tells us that A≠B and B≠C, we lose and get a really spiffy letter telling us so that is also suitable for framing.

Let’s take a closer look at this process. Yes, you’ve sent everything in paper format or put it all on a disc and VONAPPed it in. Whichever method you used, its immaterial. All this gets the once over on it way to the maw of the M-21 Brushhog. What exits the back end is bagged up like mulch and heads for the signature room. There it’s signed off on with two sigs and whoosh out the door. If you win, its the same  scenario unless the award goes over $25K and then it needs the Veterans Service Center Manager’s signature which oddly resembles the handwriting of the Director of C&P back in DC. Just a coincidence, I’m sure.

The point here is that there is not the hands-on process that everyone imagines. If that were so, how do we explain that the M-21 “accidentally” had a glitch and spit out a denial for HCV in Houston last fall based on STDs being willful misconduct and not LOD? This is just one we know of. How many more are there day in and day out? And how many are appealed?

Go one step further and look at the Sellers decision  several weeks ago. Three sigs and whoosh out the door. Then a “Standby. Houston we have a problem”. Better yet. Go back to the Macklem debacle last year. That’s proof positive that they’re brain dead or incapable of doing long division without a calculator.

Three decisions that we know of with glaring third grade errors. All three had the same problem. No one in their right mind would have signed them if they’d read them. Yet they did and thus it became a finding. A finding, for all of you who are new to this, is a “holding” judicially speaking that cannot be rescinded unless it is proved that it is the product of CUE (clear and unmistakable error).

CUE, as we know, is one of the hardest things in the world to overcome. It’s described as an outcome-determinative error- i.e. unless you can prove differently, then the decision stands. This is what happened with WGM. With Sellers, they got the three sigs but it prematurely escaped the RO like Pandora out of the box and they never could coax it back.   They weren’t finished “fixing it” yet. If this isn’t proof of the perfidy afoot at the vA, I don’t know that you could ever find better.  The Vet is approved but then it needs a “haircut” to mitigate the loss.

If no one is actually hands on in this process anymore, who is pulling the Oz levers? Someone has to insert the facts as they are known. The parameters are set and the little boxes are checked. The form populates and the info goes where it is aimed. Somewhere in the maze there is a glich and whoosh-out comes the wrong size of mulch. Nobody looks to see what the status is. It is what it is. Most importantly, it’s correct. It has to be, right? HAL 9000 says the AE-35 unit is due to fail and you trust it. Why wouldn’t you?

It’s evident this is why you can have a 60% error rate in this business and not even blink an eye. The implicit trust vA puts in computers to compute properly is legend. Why question why? Just do. This may be why vA employees in South Carolina are up in arms. They’re getting a bum rap and it’s WARMS’ fault.

If all this is being done via the WARMS M-21 wunderfunktion, do we really have a backlog in the conventional sense? It seems we don’t need more raters but munchkins to feed the in-basket hopper with data. Unfortunately, that will not result in more and better ratings. It will engender a new excuse protocol based on the “We need a new computer” scenario. Every time they revamp the technology, there’s that magic moment when the resident vA IT whiz kid says “Whoa! This  won’t interface with our existing system! We need to retool with the new HAL 9900. Then it’ll be all better. We could have that up and running by 2019 with 85 day/99% accuracy. Trust me.”

If I were a congressman , I think I’d go at it like Filner but with no quarter given or taken. Just a straight forward “Get it done. Now. Right? No more 2015, no more 98%, no more 4,000 more employees- no sir.” Excuses are like assholes and vA has learned the art form of how to present an asshole in the best light. Meet Mr. and Mrs. Vet(the assholes). We are the problem, ladies and gentlemen. If we’d give it a rest, they wouldn’t have this problem.

Posted in VA BACKLOG, vA news | Tagged , , , , , | Leave a comment

MOONWALKING

Posted on July 11, 2012 by asknod

This just in from Member Jimbo of the Mekong brownwater Squid persuasion:

A Veteran and his wife attend her twenty fifth high school reunion at a large disco ballroom rented for the occasion. After a few hours a gentleman starts to razzle-dazzle the crowd with backflips, breakdancing, moonwalking, and other feats.

The woman comments: “You see that guy down there on the dance floor? I used to date him in my senior year. He asked me to marry him but I flat-ass turned him down.”

The wise old Veteran turned to her with a deadpan expression and said: ” I gathered as much from his performance. Apparently he’s still celebrating the occasion”.

Posted in Humor | Tagged , , , , | Leave a comment

SEXUAL ASSAULT PETITION

Posted on July 10, 2012 by asknod

I received this from member Shawn this morning as well as Emo (Twinny). It makes my skin crawl to thing that we would turn these animals loose to prey on women after service. This is Big Chicken Dinner  or a DD with some serious hard time staycation in either case. They booted me with a GD 257 which was as nasty enough in 73.

Help Corporal McCoy and future women get some justice and stop this madness. It’s disgusting to even think someone would sink that low in the military and still be able to hold his head high. It takes all kinds to make the world go round. A good M-7 bayonet well-inserted usually stops this particular form of stupidity. So does a good box cutter. If a pervert can get away with rape, it seems a woman should be able to get away with inflicting a little paper cut or two on her new “friend”.

Posted in All about Veterans, Gulf War Issues, PTSD | Tagged , , , , , , , | 1 Comment

There’s trouble in tony Exeter (NH), HCV trouble

Posted on July 10, 2012 by Laura

Pretty Exeter, located in the Seacoast region of NH, is home to the elite Phillips Exeter Academy, about 14,000 people (97% white), and a hospital, Exeter Hospital.  My first granddaughter was born there and I can testify that it’s a clean, modern and calm hospital.

But things were gravely amiss in the Cardiac Catherization Lab and recovery room in recent years.   It appears as if former patients contracted the same strain of HCV there.  How? The theory is that a HCV-infected employee practiced “drug diversion” by injecting himself/herself with drugs and then using the dirty used needles on patients.   According to reports, patients were originally tested for HCV from April 1, 2011 to May 25, 2012, but that date was later moved back to October, 2010.

The numbers of diagnosed HCV-infected patients increased as the crisis unfolded. Here are  a few highlights from the hospital’s updates:

5/31/12:  4 patients have HCV.

6/1/12:  Cardiac Cath Lab reopens for emergencies only (because HCV can live on surfaces for up to 5 days).

6/4/12:  4 patients (including one, an employee/healthcare worker (HCW),  have HCV.  651 still need to be screened.

6/5/12:   Cardiac Cath Lab reopens for normal operations.

6/6/12:  10 patients have HCV.  879 still need to be screened.

6/9/12:  14 patients have HCV.

6/13/12:  20 patients have HCV.

6/14/12:   316 new patients called. NH Attorney General’s Office opens investigation.

6/14/12:  Hospital CEO apologizes on YouTube.

6/15/15:  DPHS holds a forum at the public high school.

6/18/12:  24 patients need re-testing due to errors.

6/19/12:    976 patients tested.

6/20/12:  982 patients tested.

6/27/12:   20 patients, 1 employee (HCW) have HCV.

6/29/12:  Unsafe injections due to “drug diversion” theory proposed.

7/2/12:  26 patients, 1 employee (HCW) have HCV.

Lawsuits are being filed, of course.  If true, it’s alarming that criminal unsafe injections can take place for so long, undetected. If “drug diversion” injections take place in affluent healthcare settings, don’t we have to assume it’s happening in all healthcare settings?  If “drug diversion” isn’t the true cause of the outbreak, what is?

Posted in Guest authors, HCV Health, Medical News | Tagged , , , , , , | 2 Comments

WELCOME HOME,AIRMEN

Posted on July 9, 2012 by asknod

I always feel a special happiness when my fellow airmen are found  and returned. We had  no Geneva Conventions Agreement with Laos and we were “not there”. Imagine Mission: Impossible and your government denying you existed. Imagine them never coming to look for you after the war. Imagine a 40% casualty rate.

The return of the remains of Col. Joseph Christiano of Rochester, N.Y.; Col. Derrell B. Jeffords of Florence, S.C.; Lt. Col. Dennis L. Eilers of Cedar Rapids, Iowa; Chief Master Sgt. William K. Colwell of Glen Cove, N.Y.; Chief Master Sgt. Arden K. Hassenger of Lebanon, Ore.; and Chief Master Sgt. Larry C. Thornton of Idaho Falls, Idaho is especially gratifying to many of us who served on the other side of the fence. Too large a number of our losses were KIA-BNR.  BNR stands for Body Never Recovered. That can be pure hell for a wife and children. It deprives them of the grieving process. The only worse possible scenario is being put into limbo for years when they declare him MIA. This is why we would try to confirm a pilot’s demise beyond the shadow of a doubt when they augered in. When it was clear that the outcome was decided and the gentleman was irretrievable, it was common to announce “Negative objective”. The reason was twofold. It told others en route that there was now no need and to mark the passing of a brave soul. Let us never use this phrase again where our men are still unaccounted for.

All the gentlemen mentioned were promoted posthumously as is the standard protocol. We should never rest until we can account for them all. There are so many more.

AC-130s were known as Spectre gunships. Spooky was the original AC-47 Goonybird .

And then there was was the iconic AC-119 also known as the $1.19 or dollar nineteen. I remember seeing one of these in the revetments hidden at Udorn in June 1970 with 25% of the left wing shot off. How they landed it at night was a miracle.

Posted in Milestones | Tagged , , , , | Leave a comment

FROM THE GARDEN

Posted on July 9, 2012 by asknod

I discovered something for you guys that will give you a reprieve from the endless squash and carrots all summer. There was a time when I was proud as a peacock when I brought in the watermelon-sized zuchinni. Cupcake told me to pick them earlier so I didn’t need a hand truck to bring them in. Being a fast learner, I started getting them  when they were merely half the length of a baseball bat and still manageable.

After two months of yellow summer and zukes, I was hauling them to the food bank. This worked for several weeks but the griping had begun. By the fourth week, they made my vehicle and had the license plate memorized. I think they had some guy on point with binoculars and a Prick because they were closed after that-even at 0900. I resorted to leaving them on their front porch until the cops cited me for littering.

The same goes for carrots in spades. So, what to do. I figured it out. Impress Cupcake with your knowledge of all things French including les petite vegetables. Tell her to check this out. Next, start picking those hummers when they’re little. Tell her they taste better when they don’t have all those seeds in there, Explain the nutritional value of having all the goodies jam-packed into the early July petite versions. Explain how the carrots have a much more nuanced taste when picked early. The tag line I find that works best is if you point out they charge about 25 dollars at a really fine five star restaurant for a medley of these organically grown, pesticide-free petite versions.

It can backfire on you. Cupcake now wants to go to said fine French restaurant to see how much they actually do cost. We can’t afford it.

Now you are on your way to sanity. First, it takes three or four zuchinni or yellows to even make a meal for two instead of chewing on the same one for 3 days. Similarly with carrots, you can cut back to about twice a week because you’ll run out of carrots early doing this. The best part is the guys at the food bank will start talking to you again.

Careful-no more than 6 inches long. This zuke almost got away from me.

Even smaller with the carrots if you can get away with it.

I try to keep the carrots down to dainty morsels but Punkin  caught on to my game. Now she makes me keep them at least 5 inches or more.

Posted in Food for the soul | Tagged , , , , | Leave a comment

Footlocker–FIRST,SECOND MANASSAS

Posted on July 9, 2012 by asknod

In July 1861 and  again in August 1862, the Union Army got their asses kicked at what some call the Manassas turkey shoot. It wasn’t their fault. They had poor leadership and no military training. They probably sat around playing with their i-pocketknives and did virtual shooting. They actually teach you how to shoot in Virginia. It’s a rite of passage. In fact, if you check, you’ll probably find the majority of America’s best snipers came from south of the Mason Dixon line.

For the first Manassas, the Union boys were so full of themselves, they invited their wives and girlfriends out for the day. Baaaaaad idea. They’re still so embarrassed about it they call it the Battle of Bull Run. I don’t know what they called the second one. It was far worse than BR I even without the women.

Fast forward to 1959. It’s fifty eight years later and Den # 7, Cub Scout Pack 220 of the Greater Falls Church area and the Northern Virginia Klavern  was out on its maiden field trip to Manassas. We studied all about how the Northern boys cut and run and what a bad thing that was. We were taught to have compassion on them even though they were our conquerors. We were also assured by the Park Ranger that the South had a plan and would rise again. Back then it was okay to be politically correct.

We went out onto the actual battlefield and lo- thousands, hell, millions of bullets still lay there on the red Virginia clay. Being industrious packrats, we picked up enough to fill our pockets. There were rusted out swivel slings for muskets and the occasional lockset of rusted out muskets. All this was free to the public. No strictures were place on souvenir hunting. The occasional cannonball showed its bald head here and there. My pockets weren’t big enough. I thought about it, too.

Fast forward to 2011. Mom passed in October of 2009 and the inheritance trickled back in bits and pieces. My old rock box from a  1962 Science Fair arrived and there were two of the bullets I’d picked up fifty two years ago.

Footlocker

I rescued this from her closet in 1982 when I was back there picking up my hold baggage footlocker full of goodies she’d kept since 72. It’s Great Grampa’s .58 calibre caplock from the War. They were supposed to turn them all in when they surrendered but some were allowed to keep theirs for hunting as here. It’s like a Civil War DEWAT now.

Being the eternal optimist, I fired it one last time with a .54 and lots of patch to see if it worked in 1998. It did. It’s been retired and the Park ranger lied. The South never rose again.

P.S. Click on them to zoom in for a better view.

Posted in All about Veterans, From the footlocker | Tagged , , , , | 1 Comment